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Emmett Has Two Mommies

The Next Gay Rights Battle Heads to Court

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On Wednesday, April 5, attorneys for Basic Rights Oregon (BRO) were expected to file the first move in the next fight for gay, lesbian, bisexual, and transgender rights—a lawsuit against the State of Oregon over what constitutes legal parenthood.

The case, filed on behalf of a lesbian couple and their son, argues that current law over parenting rights unconstitutionally discriminates on the basis of sexual orientation.

In March of 2004, amid the flurry of same-sex marriages that resulted from Multnomah County's decision to issue licenses to gay and lesbian couples, Jeana Frazzini and K.D. Parman, who had been together for seven years, tied the knot. A few days later, their first child, Emmett, was born. He was conceived via artificial insemination—Parman being the biological mother.

Since Frazzini and Parman were legally married at the time, they signed both their names on Emmett's birth certificate paperwork—each assuming legal parentage. But when the birth certificate arrived weeks later, only Parman's signature was listed, effectively revoking Frazzini's legal parenthood.

"I just cried," Frazzini said. "[I asked,] 'Where the hell am I?' With the stroke of a pen, someone sitting in an office somewhere took away my legal relationship with my son."

Once Measure 36, banning same-sex marriages, was passed by voters, Parman and Frazzini's chance for recourse disappeared.

"We could have done a second-parent adoption, but we had already decided that this was our family," Frazzini said.

Oregon statutory law gives automatic parent status to the husbands of mothers who conceive through artificial insemination—even though, in the vast majority of cases, they aren't the biological fathers. Another statute automatically presumes that husbands are the fathers of children born to their wives, with no proof of paternity needed, "whether or not the marriage of the husband and wife may be void."

Same-sex couples, though, don't have the option of getting married. So the couple, along with their now two-year-old son and the backing of BRO, has filed Parman v. The State of Oregon, arguing that the laws as applied (or, more accurately, not applied) to Parman and Frazzini are a violation of the state constitution's guarantee of "equal privileges and immunities." Essentially, the suit claims that the statutes discriminate on the basis of the sex and sexual orientation of the parents.

The filing is based on an Oregon appellate court's landmark ruling in a 1998 case called Tanner v. OHSU, which prevents the state and state agencies from differentiating between heterosexual couples and same-sex couples when providing benefits. But, according to BRO Communications Director Rebekah Kassell, the state has thus far failed to comply with the ruling, and still has statutes on the books that effectively discriminate based on sexual orientation.

Ultimately, Parman v. Oregon will decide if it is legal for the state to treat same-sex couples (who don't have the option to get married) and their children differently than straight, married couples.

"The birth certificate is only a symbol of a larger issue," explains the couple's attorney, Mark Johnson. Giving legal parent status to the non-biological partner gives the child access to that partner's inheritance, retirement, disability payments, etc., and gives equal custody rights to both parents.

In order to achieve the same level of protections that married straight couples have automatically, same-sex couples either "have to go through the adoption process, or make up a package of wills and legal agreements," resulting in a separate-but-unequal system, Johnson said.

"We shouldn't have to adopt our own children," he added.

The suit, filed in Multnomah County District Court, is the first case in a series of litigation BRO has planned to challenge the state's response—or lack thereof—to the Tanner decision. The organization has plans for a "handful" of cases over the coming months, each of which "reflect instances of broad-based discrimination," according to Kassell.

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